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recognition-of-states-international-law-or-realpolitik-the-practice-of-recognition-in-the-wake-of-kosovo-south-ossetia-and-abkhazia
recognition-of-states-international-law-or-realpolitik-the-practice-of-recognition-in-the-wake-of-kosovo-south-ossetia-and-abkhazia
467–490
C Foundation of the Leiden Journal of International Law doi:10.1017/S0922156511000100
Abstract
This article deals with the fundamental evolution that the process of state recognition has
gone through during the past few decades. Whereas the recognition of new states used to be
subject to a relatively concise and clear-cut normative framework consisting of factual criteria,
the dissolution of Yugoslavia marked the introduction of a new set of moral norms used to
determine whether or not an entity should be recognized as a state. This evolution gave rise
to a high level of uncertainty, among both authors and the state community, as was painfully
shown by the international discord during the crises in Kosovo and South Ossetia/Abkhazia. A
renewed normative framework for recognition that integrates both factual and moral criteria
is needed if the international community wants to prevent each claim to statehood becoming
a threat to international stability.
Key words
Kosovo; recognition; self-determination; state discretion; statehood
1. I NTRODUCTION
The body of international legal rules governing the process of state recognition finds
itself in an existential crisis. Even though the applicability of a basic set of legal rules
on the recognition of states remains the starting point of much legal scholarship,1
the practice of the last few years seems to depict a different reality in which political
convenience rather than legal norms plays the leading role.
Fundamental questions as to the role of law and politics in the recogni-
tion process were brought into particularly stark relief in the context of the
international community’s reactions to the dismemberment of Yugoslavia in
the early 1990s and the ensuing creation of new states.2 These reactions were
∗
Cedric Ryngaert, Associate Professor of International Law, Utrecht University [C.M.J.Ryngaert@uu.nl]; As-
sistant Professor of International Law, Leuven University [Cedric.Ryngaert@law.kuleuven.be]; Sven Sobrie,
Research Fellow, Department of Public Law, Leuven University [Sven.Sobrie@law.kuleuven.be].
1 See, e.g., J. Crawford, The Creation of States in International Law (2006), v; R. Sloane, ‘The Changing Face of
Recognition in International Law: A Case Study of Tibet’, (2002) 16 Emory ILR 107, at 118.
2 R. Mullerson, International Law, Rights and Politics: Developments in Eastern Europe and the CIS (1994), 119; see
generally R. Rich, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, (1993) 4 EJIL 36;
and also R. Thomas, ‘Self-Determination and International Recognition Policy: An Alternative Interpretation
of Why Yugoslavia Disintegrated’, (1997) 160 World Affairs 17.
3 D. Raic, Statehood and the Law of Self-Determination (2002), especially at 3: ‘[I]t has been suggested that the
recognition of the new States which were formed within the boundaries of the former Yugoslavia and
the former Soviet Union must mainly be explained in terms of politics. In other words, the creation and
recognition of these new States should be seen to have taken place mainly outside the domain of international
law.’
4 J. Almqvist, ‘The Politics of Recognition, Kosovo and International Law’ (working paper), (2009), Real Instituto
Elcano, at 2: ‘[I]n the case of Kosovo at least, and until now, it may well be asserted that international law has
failed, in a rather blunt way, to offer something like a common framework with the capacity of constraining
the range of reactions of third states.’
5 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion of 22 July 2010, [2010] ICJ Rep. (Kosovo Advisory Opinion), para. 51 (in which the Court noted that the
question posed did not ‘ask about the validity or legal effects of the recognition of Kosovo by those States which
have recognized it as an independent State’). Decision available at www.icj-cij.org/docket/files/141/15987.pdf.
6 Ibid., para. 79.
7 H. Köchler (ed.), The Use of Force in International Relations: Challenges to Collective Security (2006), 16.
8 Ibid.; see also T. Gazzini, The Changing Rules on the Use of Force in International Law (2005), 266.
9 Rich, supra note 2, at 64; C. Levine, ‘The Legacy of Humpty Dumpty: The Role of Recognition in the Dissolution
of Yugoslavia’, in M. Spencer (ed.), The Lessons of Yugoslavia (2000), 140.
10 S. Mahmoudi, ‘Recognition of States: The Case of Former Yugoslav Republics’, in O. Bring and S. Mahmoudi
(eds.), Current International Law Issues: Nordic Perspectives (1994), 158.
The article starts out by discussing the concept of recognition from the angle of
the constitutive and declaratory schools (section 2) and subsequently provides an
overview of the traditional normative framework governing recognition, based on
the ‘Montevideo’ factual criteria for statehood and the prohibition of recognizing
entities that have come into being through a violation of jus cogens (section 3).
As will be set out in section 4, this traditional framework was challenged during
the Yugoslavia crisis. New recognition criteria, imbued with a measure of morality,
saw the light, although practice was inconsistent. Inconsistency and politicization
also remain prevalent after Yugoslavia, however, as recent recognition practice
regarding Kosovo, South Ossetia, and Abkhazia testifies (section 5). In the final
section, modest proposals are formulated to restore the balance between law and
politics in international recognition law and practice.
11 J. Dugard and D. Raic, ‘The Role of Recognition in the Law and Practice of Secession’, in M. Kohen (ed.),
Secession: International Law Perspectives (2006), 97.
12 P. Menon, The Law of Recognition in International Law: Basic Principles (1994), 8; T. Grant, The Recognition of States:
Law and Practice in Debate and Evolution (1999), 97.
13 Sloane, supra note 1, at 116–17.
14 Crawford, supra note 1, at 21; K. Marek, Identity and Continuity of States in Public International Law (1968), 132.
this gap, in which recognition is neither merely constitutive nor merely declaratory.
In this view, statehood is seen in terms of effectiveness, with recognition as a political
act that strengthens the international effectiveness of an entity. As such, recognition
is both constitutive – since it creates stately relations between the recognizing and
the recognized state – and declaratory – since it does not, by itself, bestow statehood
on the entity.25 However, instead of attempting to find a solution to this deadlock,
one could question the practical relevance of this theoretical debate. Modern state
practice indeed offers a plethora of ‘hard cases’ that, in their entirety, cannot be fitted
into either one of the legal theories, but are somehow accommodated by the interna-
tional legal order. Israel offers an excellent example: it has all attributes of statehood,
yet it is not recognized as a state by some Arabic states. These states, however, have
held Israel responsible for violations of international law. Such a practice, in which
recognition is said to be normative without, however, blocking legal personality,
cannot be explained fully by either the constitutive or the declaratory theory.26
This is not to say that state practice should be the only norm when dealing
with issues such as state recognition. International law is built upon the delicate
balancing act between holding onto normative principles, embedded in theoretical
frameworks – without which international law would lose its status as ‘law’ –
and adapting to ever-changing state practice – without which international law
would lose its effectiveness and, eventually, its legitimacy.27 This is all the more true
when it comes to state recognition, where political state practice and normative
international law inevitably blend together.28
The starting point of this article is the impression that this necessary balance
between law and politics in the process of state recognition has been upset. Re-
cent developments in Yugoslavia, Kosovo, and Georgia have put an end to a period
during which state practice on recognition was relatively consistent. As a direct
consequence, there is a growing uncertainty as to which norms regulate state re-
cognition nowadays.29 If international law wants to maintain its credibility and its
role as a stabilizer of international relations, it needs to adapt itself to these recent
25 See J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine (1975), 679; J. d’Aspremont,
‘Regulating Statehood: The Kosovo Status Settlement’, (2007) 20 LJIL 649, at 655.
26 For criticism of the theoretical approaches, see, e.g., Roth, supra note 19, at 129: ‘Even declaratists are bound
to concede that entities are assured of enjoying rights under international law only after recognition, just
as constitutivists concede that once recognized, the entity’s status is retroactive to the point at which the
factual circumstances justified the claim to the status. What is important is that international law operates
to protect the interests of an entity only once the entity gains widespread legal (as opposed to political)
recognition by other states. In that sense, recognition is clearly constitutive; beyond that, the debate begins
to resemble a discussion of metaphysics.’ See also I. Brownlie, ‘Recognition in Theory and Practice’, in R.
MacDonald and D. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy,
Doctrine and Theory (1986), 634: ‘In the literature the theories have tended to stand in front of the issues and
to have assumed a “theological” role as a body of thought with its own validity which tends to distract the
student, and to play the role of master rather than servant.’
27 H. Lauterpacht, Recognition in International Law (1947), 427.
28 L. Hammer, A Foucauldian Approach to International Law: Descriptive Thoughts for Normative Issues (2007), 29;
Almqvist, supra note 4, at 6; H. Lauterpacht, ‘Recognition of States’, in E. Lauterpacht (ed.), International Law,
Being the Collected Papers of Hersch Lauterpacht, Vol. I (1970), 320.
29 Rich, supra note 2, at 37.
30 Crawford, supra note 1, at 98; A. Hurell, ‘Conclusion: International Law and the Changing Constitution of
International Society’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations
and International Law (1999), 331.
31 Caplan, supra note 22, at 55.
32 Art. 1, 1933 Montevideo Convention on Rights and Duties of States, 165 LNTS 19.
33 Raic, supra note 3, at 82.
34 Crawford, supra note 1, at 46; Kreijen, supra note 20, at 109.
35 Raic, supra note 3, at 51.
36 The US State Department, for example, declared in 1976 that the USA would decide on matters of recognition
based on the establishment of certain facts, including ‘effective control over a clearly-defined territory and
population; an organized governmental administration of that territory; and a capacity to act effectively to
conduct foreign relations and to fulfil international obligations’. See. E. McDowell, ‘Contemporary Practice
of the United States Relating to International Law’, (1977) 71 AJIL 337. See also, in relation to Canada,
down in formal policy rules or not, leave substantial room for interpretation, as a
result of which states, at the end, reserve a lot of discretionary manoeuvring space
for themselves. This elasticity does not, however, alter the fundamental fact that
states consider themselves bound by these criteria and use them to account for
their recognition practice. The Montevideo requirements therefore constitute a first
normative pillar on which state practice has rested for the past few decennia. The
second pillar is much more recent and relates to violations of jus cogens.
The prohibition of recognizing entities as states when they have come into being
through violation of a jus cogens norm originates from the non-recognition of Man-
chukuo by the United States in 1931. This refusal to recognize that Japanese satellite
state in what is now the People’s Republic of China led to the so-called Stimson
doctrine, which was later taken over by the League of Nations and its successor, the
United Nations, to become a universal norm that seriously limits state discretion in
the process of state recognition.37 The fact that this duty of non-recognition now
has universal validity is highlighted by its insertion in Article 41(2) of the Articles
on the Responsibility of States for Internationally Wrongful Acts: ‘No State shall
recognize as lawful a situation created by a serious breach [of an obligation arising
under a peremptory norm of general international law], nor render aid or assistance
in maintaining that situation.’38
One should note the fundamental difference from the Montevideo requirements:
whereas the latter base recognition in essence on the effectiveness of an entity,
the duty of non-recognition envisages the nullity of the consequences that a grave
violation of international law might have regardless of the effectiveness of the entity
emerging from such a violation.39
The traditional legal framework governing state recognition appeared to be clear
and concise, and thus led to a relatively consistent state practice.40 Since inter-
national law contained no obligation to recognize an entity when it met all criteria,
J. Beesley and C. Bourne (eds.), ‘Canadian Practice in International Law during 1971 as Reflected Mainly in
Public Correspondence and Statements of the Department of External Affairs’, (1972) 10 CYIL 287, at 308–9.
On a similar note, the British Foreign Office justified the non-recognition of Bophuthatswana as follows:
‘The normal criteria which the Government apply for recognition of a state are that it should have, and
seem likely to continue to have, a clearly defined territory with a population, a Government who are able of
themselves to exercise effective control of that territory, and independence in their external relations’; see
G. Marston (ed.), ‘United Kingdom Materials on International Law’, (1986) 57 BYIL 507.
37 V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question
of Southern Rhodesia (1990), 282. It is noted that this refusal was not based on the violation of a universal norm,
but on the infringement of a treaty. This limited the scope of the newly created practice. However, this code
of conduct (duty of non-recognition) gradually evolved into a collective and effective international legal
rule as a result of its linkage to jus cogens as a nucleus of elementary legal norms that are universally binding
merely by their fundamental nature; cf. J. Dugard, ‘Recognition and the United Nations’, in International
Law Commission, Hersch Lauterpacht Memorial Lectures (1987), 133, at 137–47.
38 This wording also shows that the scope of the obligation is not limited to non-recognition of states: it also
includes other acts such as unlawful territorial expansions and occupations. Cf. Dugard, supra note 37, at
135. Obviously, the question immediately arises as to what norms can be regarded as of such importance as
to constitute jus cogens. While an in-depth examination of this issue falls outside the scope of this article,
the following norms could arguably be so considered: the prohibition of aggression, the prohibition of
acquisition of territory by force, the prohibition of racial discrimination and apartheid, and the right to
self-determination.
39 V. Gowlland-Debbas, ‘The Functions of the UN Security Council in the International Legal System’, in Byers,
supra note 30, at 280.
40 Mahmoudi, supra note 10, at 137; Rich, supra note 2, at 36.
but only a negative duty not to recognize when not all criteria were met, the applic-
able legal rules could be described as an outer limit on state discretion.41 A concise
yet clear normative framework, with a consistent state practice as its corollary, thus
added to a stable international order, in which dubious claims were faced with rejec-
tion and straightforward criteria prevented a pandemic of seceding entities claiming
statehood.42
The dissolution of Yugoslavia, however, marked the beginning of a fundamental
evolution within international law in general and state recognition in particular,
the results of which are still not fully crystallized – witness recent developments
in Kosovo and Georgia. This diverging state practice, together with the underlying
reasons and the consequences for the normative framework and for the fragile
balance between law and politics, will be discussed below.
50 One-third of that territory was being occupied by Croatian Serbs who declared their own Republic of Serbian
Krajina in these regions, which had triggered a bloody civil war; cf. T. Musgrave, Self-Determination and
National Minorities (1997), 206.
51 Badinter Commission, Opinion No. 5, 11 January 1992, (1993) 4 EJIL 76; the EC, however, deemed a declaration
of Croatian president Tudjman, in which he guaranteed that this gap would be filled, sufficient – from a legal
perspective, a very dubious procedure indeed: cf. Raic, supra note 3, at 432–3.
52 Rich, supra note 2, at 51. More than two-thirds of the Bosnian territory was being controlled by rebellious
Bosnian Serbs, who had declared their own Serbian Republic of Bosnia and Herzegovina a few months earlier;
cf. Musgrave, supra note 50, at 206.
53 J. Dugard, International Law: A South African Perspective (2005), 90.
54 Radan, supra note 43, at 194–5.
55 Greece rejected the use of the name ‘Macedonia’ and other Hellenistic symbols mainly for fear of possible
future territorial claims of its new neighbour; cf. S. Murphy, ‘Democratic Legitimacy and the Recognition of
States and Governments’, in G. Fox and B. Roth (eds.), Democratic Governance and International Law (2000), 135;
N. Gianaris, Geopolitical and Economical Changes in the Balkan Countries (1996), 152. This deadlock was only
broken in 1993, when the new republic was accepted as a member of the UN under the provisional name of
the ‘Former Yugoslav Republic of Macedonia’; cf. Radan, supra note 43, at 195. During the following months,
all European member states recognized the republic under the same name – save for Greece, which only
recognized the entity as a state in September 1995. The issue is still not entirely settled, though – witness the
case that the FYROM brought against Greece before the ICJ, on the grounds that the latter would unlawfully
have opposed the former’s entry to NATO: Application of the Interim Accord of 13 September 1995 (The
Former Yugoslav Republic of Macedonia v. Greece) (see www.icj-cij.org for the current status of the case).
its policy of recognizing the former Yugoslav republics within a broader normative
framework.56
The same holds true for other Western states such as Australia and Canada.57
It was therefore mainly because of the European Community’s actions that the
international rules on state recognition evolved during the Yugoslav crisis. This
evolution led to a somewhat paradoxical situation. On the one hand, the set of rules
governing state recognition appeared to be considerably extended. On the other,
however, the rules were not applied in a very consistent manner. This paradox cast
a shadow over the binding character of these rules and over how the international
law on recognition was to develop further.
56 Cf. President Bush’s statement on the recognition of Bosnia and Herzegovina, Croatia and Slovenia, 7 April
1992, in S. Trifunovska (ed.), Yugoslavia through Documents: From Its Creation to Its Dissolution (1994), 521: ‘The
United States recognizes Bosnia and Herzegovina, Croatia and Slovenia as sovereign and independent states
. . .. We take this step because we are satisfied that these states meet the requisite criteria for recognition.’
57 N. Gammer, From Peacekeeping to Peacemaking: Canada’s Response to the Yugoslav Crisis (2001), 126; D. Markusic,
‘The Rocky Road to International Recognition’, (1993) 30 Political Thought: Croatian Political Science Review 19,
at 25.
58 S. Lucarelli, Europe and the Breakup of Yugoslavia: A Political Failure in Search of a Scholarly Explanation (2000),
278; Thomas, supra note 2, at 17.
59 Cf. D. Wippman, ‘Introduction: Ethnic Claims and International Law’, in D. Wippman (ed.), International
Law and Ethnic Conflict (1998), 12: ‘In practice, the international community has yet to settle on any single
version of self-determination. . . . The normative confusion generated by this state of affairs is evident in the
divergent invocations of self-determination in the context of the breakup of the Socialist Federal Republic of
Yugoslavia’; see also J. Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination
and Statehood (1996), 72.
60 Rich, supra note 2, 56.
61 Ibid., at 43 (referring to the recognition of Croatia and Bosnia and Herzegovina to back their claim, since
neither of those entities passed the Montevideo test at the moment of their recognition).
62 Musgrave, supra note 50, at 204; J. Vidmar, ‘International Legal Responses to Kosovo’s Declaration of In-
dependence’, (2009) 42 Vand. JTL 779, at 841 (finding support in the aforementioned EC Declaration that
explicitly mentions ‘the normal standards of international practice’ as a factor taken into account when
assessing a claim to statehood).
A third and final issue touches upon the very foundations of international law
and its uneasy relation to political discretion: to what extent can the criteria for state
recognition still be considered to be normative rules, when, apparently, these cri-
teria can be readily set aside for the entity that should or should not be recognized,
depending on the political situation? Therefore, it may seem that the new rules
that the European Community has created are mainly, or even entirely, political
criteria, notwithstanding the legal discourse and the interventions of the Badinter
Commission.63 Especially the requirements of human-rights protection and demo-
cracy are considered to be political guidelines more than anything else, and the
recognition of Croatia and of Bosnia and Herzegovina is often brought forward as an
argument in support of this interpretation.64 Another line of reasoning is based on
the EC Declaration itself, where ‘the political realities in each case’ are mentioned
as a factor to be taken into account.65
Accordingly, there is little doubt that, as a result of the striking discrepancy
between the objectivity of the norms on the one hand and the inconsistency of state
practice on the other, the dissolution of Yugoslavia created a lot of uncertainty and
confusion as to the set of norms governing state recognition.66 The outcome of this
evolution remained highly uncertain in the years following Yugoslavia’s dissolution
and it remained to be seen whether and how subsequent state practice would clear
things up.
63 Other authors, however, are more nuanced in their analysis of state practice, still seeing a role for international
law. J. Charpentier, ‘Les déclarations des douze sur la reconnaissance des nouveaux etats’, (1992) 96 RGDIP 343,
at 347: ‘Il n’était pas inconcevable que les Douze confèrent au résultat de leur concertation une valeur
juridique obligatoire. Les deux déclarations auraient été alors des accords en forme simplifiée. Mais en réalité,
les engagements souscrits ne dépassent pas la portée d’engagements politiques c’est-à-dire d’engagements
qui, tout en étant destinés à orienter le comportement des Etats dans le sens indiqué, ne sauraient les y
contraindre’; see also M. Weller, ‘The International Response to the Dissolution of the Socialist Federal
Republic of Yugoslavia’, (1992) 86 AJIL 569, at 588.
64 C. Chinkin, ‘International Law and Human Rights’, in T. Evans (ed.), Human Rights 50 Years On: A Reappraisal
(1998), 107; Dugard, supra note 53, at 90; Wouters, De Meester, and Ryngaert, supra note 42, at 158–9.
65 See B. Boczek, International Law: A Dictionary (2005), 100: ‘At least some of the criteria articulated by the
EC in its Guidelines for recognition of the states emerging from the break-up of the Soviet Union and the
SFRY were purely political conditions transcending the traditional qualifications for statehood required by
international law. However, it appears that the standards devised by the EC, especially those pertaining to
democracy, human rights, and treatment of minorities, have been rapidly evolving into legal criteria acquiring
the nature of general standards of international law used in the recognition of states and governments.’
66 See also Mullerson, supra note 2, at 117: ‘The emergence of new states in Eastern Europe and the former Soviet
Union has raised issues relating to the recognition of states and has once more engendered discussions on
whether such recognition is a political or legal phenomenon or whether it has a declaratory or constitutive
nature.’
67 This article does not purport to be an exhaustive essay on contemporary recognition cases. Rather, it intends
to analyse the relation between law and politics in the process of state recognition and the way in which
states deal with this tension, by taking a closer look at some – though not all – recent recognition situations.
also provided an opportunity for state practice to bring some sort of order out of
the chaos in which the norms on state recognition had found themselves since the
dissolution of Yugoslavia, almost 20 years earlier.
5.1. Kosovo
As is well known, Kosovo unilaterally declared its independence from Serbia on
17 February 2008. This caused the UN General Assembly, at the behest of Serbia,
to request the International Court of Justice to give an advisory opinion on the
legality of this declaration under international law. Controversially, in its 22 June
2010 opinion, the International Court of Justice held this declaration to be not in-
compatible with UN Security Council Resolution 1244 (1999), which established
the UN Mission in Kosovo, with the Constitutional Framework for Kosovo (2001),
or with general international law. But, more importantly for our purposes, the In-
ternational Court of Justice kept silent about the consequences of the declaration of
independence, including on the recognition of Kosovo. In fact, it is not impossible
that the declaration itself is lawful (which it was, according to the Court), while the
recognition of Kosovo as a state is unlawful. Indeed, with respect to Kosovo’s pur-
ported right to secession, the Court stated that ‘it is entirely possible for a particular
act – such as a unilateral declaration of independence – not to be in violation of
international law without necessarily constituting the exercise of a right conferred
by it’.68 In any event, under the traditional model, as discussed above, international
law only prohibits recognition as lawful of a situation created by a serious breach
of an obligation arising under a peremptory norm of general international law.69
It is open to doubt whether a secession amounts to a serious breach of norms of
jus cogens. In fact, if one reads the International Court of Justice’s Kosovo Opinion
carefully, it is even open to doubt whether a secession is a breach of international
law in the first place. According to the Court, ‘the scope of the principle of territorial
integrity is confined to the sphere of relations between States’.70 This seems to imply
that a unilateral secession, which belongs to the sphere of intra-state relations (a
sub-state entity separating from the mother state), does not violate the principle of
territorial integrity. Either way, recognition of Kosovo would not be unlawful under
international law, except, of course, if one believes that the presumably illegal use of
force by NATO against Serbia in 1999, which led to the creation of a UN transitional
administration and ultimately to the independence of Kosovo, has a bearing on the
argument: such use of force might violate a norm of jus cogens and, arguendo, prohibit
states from recognizing the ensuing situation, namely Kosovo’s statehood.
In practical terms, however, the law has taken a back seat in the process of
recognizing Kosovo. To be true, upon learning of Kosovo’s declaration of independ-
ence, the EC Council has noted ‘that Member States will decide, in accordance with
national practice and international law, on their relations with Kosovo’.71 In real-
ity, ‘national practice’ – this is diplomatic parlance for political expediency – has
sidelined the role of international law in the recognition process. This made a uni-
form EC recognition practice a non-starter. An exhaustive and elaborate normative
framework, as used by the European Community to deal with the dissolution of
Yugoslavia a decade ago, was nowhere to be seen.
When browsing through the international reactions to Kosovo’s declaration of
independence, both European and non-European, the scarcity of references to inter-
national law is striking. References are often limited to a mere mentioning of ‘inter-
national law’, ‘the rule of law’, or a vague reference to the right to self-determination
or the protection of minorities.72 States that recognized Kosovo have almost invari-
ably justified their decision to grant recognition – if such a justification was given
at all – by referring to political considerations, most notably the need for stability,
peace, and security in the region, and the positive effect recognition would have on
these parameters.73
Conspicuously, however, states that refused to grant recognition relied to a much
greater extent, and in much greater detail, on international law in their line of reas-
oning. More specifically, the notions of state sovereignty and territorial integrity –
core principles of the Westphalian legal order – were often mentioned as reasons
not to recognize Kosovo.74 Nonetheless, international law quite probably does not
prohibit the recognition of a secession, since a secession does not rise to the level of
a violation of a peremptory norm of international law. Therefore, the main reason
for non-recognition is not so much situated in the sphere of international law as in
the sphere of domestic politics, taking into account that a substantial number of
these states have to deal with minorities and secessionist claims themselves.75 They
were indeed quick to point out the dangers of a precedent-setting recognition of a
breakaway region such as Kosovo for international and domestic stability.76
Several recognizing states acknowledged this danger and explicitly stressed the
‘unique character’ of Kosovo in their declarations of recognition, anxious to refute
71 Council of the European Union, Press Release of 18 February 2008 (regarding proceedings at
the 2850th meeting on General Affairs (6946/08)), available at www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/en/gena/98818.pdf.
72 See, e.g., Statement of the Republic of China (Taiwan) on Kosovo, 19 February 2008, available at
www.mofa.gov.tw; see also Kingdom of the Netherlands, Nieuwsbericht: Nederland erkent onafhankelijkheid
Kosovo, 4 March 2008, available at www.minbuza.nl.
73 Almqvist, supra note 4, at 8; see also, e.g., Statement of HE Mr Ali Babacan (minister of foreign affairs of
the Republic of Turkey), ‘Regarding the Recognition of Kosovo by Turkey’, 18 February 2008, available at
www.mfa.gov.tr.
74 See, e.g., Press Briefing of the Ministry of External Affairs of India in Response to Questions on Developments
Regarding Kosovo, 18 February 2008, available at http://meaindia.nic.in; see also, e.g., Press Release of the
Ministry of Foreign Affairs of the Russian Federation, 15 February 2008, available at www.mid.ru.
75 A. Cooley and H. Spruyt, Contracting States: Sovereign Transfers in International Relations (2009), 203.
76 Cf. Statement by Russian deputy minister of foreign affairs Alexander Grushko at the Opening of the OSCE
Annual Security Review Conference, 1 July 2008, available at www.mid.ru: ‘The unilateral declaration of
Kosovo’s independence came as a serious challenge, as it has created a dangerous precedent of going beyond
the confines of the underlying principles of the Helsinki Final Act. Questions of territorial integrity of states
and inviolability of borders have again taken center stage on the European agenda.’
the claim that a dangerous precedent was being set.77 Obviously, this emphasis on the
sui generis character of the recognition of Kosovo diminishes the international-law
relevance of such a recognition.
In an awkward statement of 18 February 2008, the Council of the European Union,
for instance, stressed the fundamental importance of the international principles
of sovereignty and territorial integrity, while at the same time arguing that these
principles would not fully apply to the sui generis case of Kosovo:
The Council reiterates the EU’s adherence to the principles of the UN Charter and the
Helsinki Final Act, inter alia the principles of sovereignty and territorial integrity and
all UN Security Council resolutions. It underlines its conviction that in view of the
conflict of the 1990s and the extended period of international administration under
SCR 1244, Kosovo constitutes a sui generis case which does not call into question these
principles and resolutions.78
The events in Kosovo made it painfully clear that the international community of
states was seriously divided on the issue of state recognition and that international
law played only a minor role in the process of recognition. This uneasy state of affairs
would be emphasized again by the events in Georgia, only a few months later.
77 Statement by Secretary of State Condoleezza Rice, ‘U.S. Recognizes Kosovo as Independent State’, 18 February
2008, available at www.state.gov: ‘The unusual combination of factors found in the Kosovo situation –
including the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians
in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make
Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today’; see
also Canada, ‘Canada Joins International Recognition of Kosovo’, News Release, 18 March 2008, available at
www.international.gc.ca.
78 Council of the European Union, supra note 71.
79 V. Chetarian, War and Peace in the Caucasus: Ethnic Conflict and the New Geopolitics (2008), 373.
80 For a more detailed overview, see Independent International Fact-Finding Mission on the Conflict in Georgia,
Report (30 September 2009), Vol. III, at 199–226, available at www.ceiig.ch/Report.html.
81 Statement by the Ministry of Foreign Affairs of the Russian Federation, 29 August 2008, available at
www.mid.ru.
Making this decision, Russia was guided by the provisions of the Charter of the United
Nations, the Helsinki Final Act and other fundamental international instruments,
including the 1970 Declaration on Principles of International Law concerning Friendly
Relations among States. It should be noted that in accordance with the Declaration,
every State has the duty to refrain from any forcible action which deprives peoples
of their right to self-determination and freedom and independence, to adhere in their
activities to the principle of equal rights and self-determination of peoples, and to
possess a government representing the whole people belonging to the territory. There
is no doubt that Mikhail Saakashvili’s regime is far from meeting those high standards
set by the international community.82
Once again, the right to self-determination was used in a non-colonial context and
was seen as the basis for South Ossetia’s and Abkhazia’s remedial secession claims.
The right to remedial secession – that is, a secession that derives its lawfulness
from the illegitimate character of the governing regime – is arguably codified in the
Friendly Relations Declaration, which, in the International Court of Justice’s view,
constitutes customary international law.83 This document, however, also stresses
the principles of sovereignty and territorial integrity,84 which the non-recognizing
states readily relied on to condemn Russia’s recognition.85 This position was shared
by NATO – an attitude that Russia regarded to be ‘a politically motivated, selective
interpretation of international law, based on double standards’, in view of NATO’s
earlier involvement in Kosovo.86 At the same time, the double-standards criticism
can apply with equal force to Russia, which recognized South Ossetia and Abkhazia,
but not Kosovo. Ultimately, whether or not the circumstances of a given case warrant
remedial secession and, in particular, whether or not a regime is legitimate and
sufficiently protective of minority rights are in the eye of the beholder.87 Accordingly,
the vagueness of the applicable legal standard serves all protagonists well to claim
the moral high ground and, as the case may be, to vindicate or reject the lawfulness
of the secession and their subsequent (non-)recognition.
As in the Kosovo crisis, legal discourse on the recognition of South Ossetia and
Abkhazia could be reduced to playing off the right to self-determination against the
82 Statement by the Ministry of Foreign Affairs of the Russian Federation, 26 August 2008, available at
www.mid.ru.
83 See Kosovo Advisory Opinion, para. 80; Military and Paramilitary Activities In and Against Nicaragua (Nicaragua
v. United States of America), Judgment at the Merits Phase, [1986] ICJ Rep. 1, at 101–3, paras. 191–193). Remedial
secession is tackled in para. 5(7) of the Declaration on Principles of International Law Concerning Friendly
Relations and Co-Operation among States in Accordance with the Charter of the United Nations, GA Res.
2625 (1970), Annex, 25 UN GAOR, Supp. (No. 28), UN Doc. A/5217, at 121, which provides that the principle of
territorial integrity in a context of self-determination of peoples only applies to states ‘conducting themselves
in compliance with the principle of equal rights and self-determination of peoples as described above and
thus possessed of a government representing the whole people belonging to the territory without distinction
as to race, creed or colour.’
84 Ibid.: ‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign
and independent States.’
85 See Council of the European Union, ‘Presentation of the Report of the Independent International Fact-
Finding Mission on the Conflict in Georgia’, Press Release 13875/09, 30 September 2009, available at
www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/110370.pdf.
86 R. Weitz, Global Security Watch – Russia: A Reference Handbook (2010), 154.
87 For instance, in the preparatory works of its act of recognition, Russia aims to distinguish the situation of
Kosovo from the situation of South Ossetia and Abkhazia for self-determination, independence, secession,
and recognition purposes; cf. Chetarian, supra note 79, at 377.
principle of territorial integrity. This account exposes once more the fundamental
uncertainty on the role, content, and scope of the legal norms on state recognition. It
should be noted, however, that the final report of the Independent International Fact-
Finding Commission does contain a rather elaborate legal argumentation in which
both traditional and post-Yugoslavian criteria are used to evaluate whether or not
the entities should be recognized.88 Unfortunately, this nuanced legal discourse was
not taken up by the community of states, much unlike the impact that the Badinter
Commission had on the state and institutional discourse and practice during the
dissolution of Yugoslavia. An important reason for this might be the fact that the
report of the Fact-Finding Commission was only published almost a year after the
events in Georgia took place.
5.3. Conclusion
Earlier in this article, it was established that legal doctrine was sharply divided as to
the new normative framework on recognition after the events in Yugoslavia. This
division was situated on three levels: the content and scope of the applicable norms,
especially the right to self-determination; the relationship between the traditional
framework and the new conditions developed during the Yugoslavia crisis; and the
legal or political nature of the applicable normative framework. Recent state practice
shows that the international state community currently finds itself confronted with
the very same uncertainties.
On the conceptual level, state practice reveals a state of fundamental confusion
as to the concrete content of the right to self-determination and its relation to
the principle of territorial integrity, now that the former concept appears to have
broadened in scope to include non-colonial contexts as well. The case studies of
Kosovo, South Ossetia, and Abkhazia show that these concepts are played out against
each other. There is no further elaboration on their respective content or mutual
relation. This ultimately leads to a legal stalemate and allows political expediency
to carry the day.
To what extent does the current discourse apply the traditional norms and the
more modern criteria regarding human rights, democracy, and minority protection?
As far as the traditional criteria are concerned, it is striking that the Montevideo
requirements are almost entirely absent in the – limited – legal discourse of states.
Nevertheless, even though the impact of the traditional criteria appears to be dimin-
ishing, it is probably a bridge too far to state that the traditional criteria have become
entirely obsolete in the process of state recognition. After all, legal doctrine – and,
for that matter, the Georgia Fact-Finding Commission – do remain faithful to the
traditional criteria.89 As far as the modern criteria of human rights, democracy, and
minority protection are concerned, it is noted that the Ahtisaari plan – a proposal
launched during the Kosovar negotiations that was abandoned eventually – referred
88 Independent International Fact-Finding Mission on the Conflict in Georgia, Report (30 September 2009), Vol.
II, at 127–35, available at www.ceiig.ch/Report.html; in the report, it was concluded that neither South Ossetia
nor Abkhazia should be recognized, due to the preconditions of statehood not being met, the unlawfulness
of the secession, and the lack of minority and human-rights protection.
89 Cf. Vidmar, supra note 62, at 818; Independent International Fact-Finding Mission on the Conflict in Georgia,
Report (30 September 2009), Vol. III, at 127–35.
to the need for Kosovo to respect human rights, develop democratic institutions,
and protect minorities before it could be granted independence.90 Also, some official
state declarations refer to human rights and minority protection.91
Indeed, recognition of secession sometimes hinges on the insufficient realization
of the right to self-determination by a mother state. This remedial-secession discourse
arguably undergirds Western recognition of Kosovo and Russian recognition of the
Georgian breakaway regions. At the same time, this apparently legal discourse may
serve as a Trojan Horse to reintroduce all sorts of political considerations into the
recognition process.
This point brings us to the more fundamental question as to the extent to which
state recognition is determined by political or legal factors. In the final analysis, the
desired result informs various types of legal argumentation, based on the Montevideo
criteria, human rights and democracy, territorial integrity, remedial secession, etc.
As a result, international law seems to have become unable to fulfil its traditional
role as an outer limit on state discretion.92
In conclusion, it can be stated that the fog banks surrounding the process of state
recognition, created during the dissolution of Yugoslavia, still remain. The lack of
a clear-cut normative framework gives way to uncertainty and incoherent policies
based on ‘unique cases’.93 The case studies furthermore sharply reveal the potential
threats of these inconsistencies for international stability, as Worster aptly states:
It may be that the widespread recognition of Kosovo has spurned a ‘war of recognitions’,
the latest salvo of which is the movement within Russia to recognize the independence
of South Ossetia and Abkhazia, a diplomatic attack on Georgia’s territorial integrity.94
Bearing this in mind, it may seem to be regrettable that the International Court of
Justice let slip a great opportunity to clear things up when it was asked to give an
advisory opinion on the accordance of Kosovo’s unilateral declaration of independ-
ence with international law. As already noted, instead of giving guidance on the
content, scope, and status of the norms that govern the process of state recognition,
the Court refused to touch upon the matter and limited itself to answering the nar-
rowly framed question of whether the declaration of independence itself was lawful,
irrespective of its consequences. That said, it is not unusual for the Court to live up
to some judicial economy and to refuse to give answers to questions that are only
implied in, or bear only an indirect relationship with, the question submitted to it.
90 Letter from the UN Secretary-General addressed to the President of the Security Council dated 26 March
2007, UN Doc. S/2007/168 (2007).
91 See, e.g., Canada, ‘Canada Joins International Recognition of Kosovo’, News Release, 18 March 2008, available
at www.international.gc.ca; see also Kingdom of the Netherlands, supra note 72.
92 Cf. Almqvist, supra note 4, at 2.
93 B. Coppieters, ‘The Recognition of Kosovo: Exceptional but Not Unique’, in M Emerson (ed.), Readings in
European Security: Volume 5 (2009), 97.
94 W. Worster, ‘Law, Politics, and the Conception of the State in State Recognition Policy’, (2009) 27 Boston U.
ILJ 115, at 117.
6. QUO VADIS ?
Since the International Court of Justice has failed to shed more light on the uncer-
tainties as to recognition described above, the final part of this article takes a closer
look at those incertitudes in a careful attempt to answer some of the questions that
have arisen over the last two decades. These questions are the following: (i) How
can a balance be struck between the principle of territorial integrity and the right
to (external) self-determination and what are, or should be, the consequences for
the practice of recognition? (ii) How much morality can this process bear for the
effectiveness of the legal system not to suffer? (iii) How can the law accommodate
political expediency?
102 K. Henrard, Minority Protection in Post-Apartheid South Africa: Human Rights, Minority Rights and Self-
Determination (2002), 22.
103 See, e.g., D. Nincic, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (1970), 248;
M. Pomerance, Self-Determination in Law and Practice (1982), 37.
104 Canada Supreme Court, Reference Re Secession of Quebec, Judgment of 20 August 1998, (1998) ILM 1371, at
1373 (emphasis in original): ‘The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of
its political, economic, social and cultural development within the framework of an existing state. A right
to external self-determination . . . arises only in the most extreme of cases and, even then, under carefully
defined circumstances.’ The Court continues by distinguishing three situations in which the right to external
self-determination comes into play: ‘[T]he international law right to self-determination only generates, at
best, a right to external self-determination in situations of former colonies; where a people is oppressed, as
for example under foreign military occupation; or where a definable group is denied meaningful access to
government to pursue their political, economic, social and cultural development. In all three situations, the
people in question are entitled to a right to external self-determination because they have been denied their
ability to exert internally their right to self-determination.’
105 Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, [1986] ICJ
Rep. 567; Castellino, supra note 95, at 141.
106 A. Bayefski (ed.), Self-Determination in International Law: Quebec and Lessons Learned (2000), 147; J. Preece,
National Minorities and the European Nation-States System (1998), 46.
107 Badinter Commission, Opinion No. 3, 11 January 1992, (1992) 3 EJIL 1, at 185.
108 S. Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (2002), 202; T. Potier, Conflict
in Nagorno-Karabakh, Abkhazia and South Ossetia: A Legal Appraisal (2001), 44.
109 M. Fabry, Recognizing States: International Society and the Establishment of New States since 1776 (2010), 206;
Radan, supra note 43, at 232.
110 R. Mullerson, ‘Introduction’, in R. Mullerson, M. Fitzmaurice, and M. Andenas (eds.), Constitutional Reform and
International Law in Central and Eastern Europe (1998), xx.
111 Lalonde, supra note 108, at 240.
112 Rich, supra note 2, at 64.
113 Chinkin, supra note 64, at 106–7 (as to human rights); Wouters, De Meester, and Ryngaert, supra note 42, at
158 (as to democracy).
114 Hammer, supra note 28, at 31; Sloane, supra note 1, at 114.
115 Rich, supra note 2, at 64.
116 Cf. Kreijen, supra note 20, at 13: ‘Because centralized coercion and compulsory adjudication are essentially
lacking in the international legal order, this order must almost entirely rely on the factual ability of its
subjects to provide the implementation and enforcement of its norms. To put it another way, to endow
that are unable to assume the rights and duties that come with statehood cannot be
admitted to the international community.117
The principle of effectiveness therefore constitutes a vital threshold. That being
said, it should be noted that the fulfilment of moral criteria, most notably the
presence of democratic institutions, adds to the effectiveness of a new entity and
thus strengthens this entity’s position as being ‘recognizable’.118 Moral criteria can
therefore be seen as useful value-oriented corrections to the inherently amoral core
principle of effectiveness and, at the same time, as a successful means to foster that
very same effectiveness.
Nevertheless, some caveats should be kept in mind when applying moral criteria.
First, some consideration should be given to the fact that a considerable number
of generally recognized states do not meet some or all of the second-generation
criteria. In theory, one could argue that, for this reason, the recognition of those
existing states should be withdrawn.119 However, such a conclusion seems a bit
hasty. In the interest of international stability, it is desirable that a high threshold
is set before a state loses its statehood – witness cases such as Sudan and Somalia,
entities still recognized as states notwithstanding their continuing lack of effective
governments.120 Moreover, imposing such criteria as human-rights protection or
democratic institutions on existing states would probably be perceived as a flagrant
violation of the well-established prohibition of intervention in internal affairs.121
For an existing state, this hardly rebuttable ‘presumption of statehood’ entails
that when it does not meet some of the criteria, whether of the first or the second
generation, such does not bring about an end to its statehood.122 Incidentally, it
means that higher standards are used for new states than for existing states. This
being so, an existing state’s meeting the moral criteria plays an important part
in occupying the moral high ground when recognizing another entity; this may
increase the credibility and leverage of the recognizing state.
Second, and more fundamentally, the use of moral criteria increases the risk of
inconsistency in the process of state recognition: after all, such criteria lack a clear
and unambiguous definition.123 The way the criteria were put into practice during
the dissolution of Yugoslavia indeed shows their potential for arbitrariness,124 as
does the application of too-loosely defined criteria for remedial secession. In this
respect, we should remind ourselves of Lauterpacht’s warning so many years ago:
entities, which do not possess the factual ability to act in accordance with the normative requirements of
a decentralized legal order – i.e., to confer on them the legal capacity to be the bearers of rights and duties
under the order, while merely presuming their factual capacity – is to put at risk the functioning of that
order.’
117 C. Hillgruber, ‘The Admission of New States to the International Community’, (1998) 9 EJIL 491, at 499.
118 J. d’Aspremont, ‘Post-Conflict Administration as Democracy-Building Instruments’, (2008) 118 Chicago JIL
1, at 15.
119 Dugard, supra note 53, at 89.
120 Raic, supra note 3, at 71; d’Aspremont, supra note 25, at 663; Shaw, supra note 99, at 186.
121 Hillgruber, supra note 117, at 501.
122 K. Buhler, State Succession and Membership in International Organizations: Legal Theories versus Political Pragma-
tism (2001), 18; Kreijen, supra note 20, at 24.
123 Rich, supra note 2, at 64.
124 Dugard, supra note 53, at 89–90.
The cases of Kosovo and Georgia have indeed shown the consequences of normative
uncertainty for international relations.
6.4. Conclusion
This article started from the distorted relationship between law and politics in the
process of state recognition and the way this was reflected in recent state practice.
It was stated that the dissolution of Yugoslavia marked the beginning of a funda-
mental evolution in the normative framework governing recognition, giving way to
uncertainty and incoherence that, in turn, led to increased political tension. A new
coherent normative framework, leaving enough room for political considerations
while avoiding arbitrariness, is still in the process of being shaped.
If the state community is to accept a new normative framework regulating the
process of state recognition to a minimal yet necessary extent – as indeed it should –
there must first be a consensus on the content and scope of the norms making up
this framework.132 The uncertainties that have arisen during the last few decades
are closely intertwined: the balance between law and politics in the process of state
recognition has been distorted by the confusion about the nature and content of the
post-Yugoslavian normative framework. This balance can therefore only be restored
when the clouds surrounding these new norms have finally disappeared.
This being said, one should bear in mind that, despite efforts from scholars,
judges, and diplomats, the issue of state recognition remains – and will remain – a
much-debated issue. This article only aspires to offer one possible approach, keeping
in mind the modest wisdom of Kelsen: ‘The problem of recognition of states and
governments has neither in theory nor in practice been solved satisfactorily. Hardly
any other question is more controversial, or leads in the practice of states to such
paradoxical situations.’133